ISTANBUL/SARAJEVO, Bosnia and Herzegovina
The interim ruling by the International Court of Justice (ICJ) in South Africa’s genocide case against Israel has spurred much debate around the world.
From the six provisional measures ordered to their actual enforcement and compliance, there have been different interpretations put forward by legal experts and observers.
The UN’s top court dismissed Israel’s request to throw out the genocide case filed by South Africa in December, recognizing that there is a plausible risk of genocidal acts being committed in Israel’s ongoing assault on Gaza, which has now killed more than 27,000 Palestinians and injured over 66,000.
In its interim ruling, the world court also recognized the plausible risk of genocide in Gaza, where more than 26,000 Palestinians have been killed by Israeli forces since Oct 7.
Interpreting risk of genocide
Michael Becker, an international law expert, stressed that it is “very important as a threshold matter that the ICJ found that South Africa has put forward claims that are at least plausible.”
While this is not a very high standard, it is still significant that the court said it was met, he said.
Toby Cadman, an international law specialist, pointed out that the court was not supposed to determine at this point whether there is a genocide being committed.
“There was an imminent risk of a genocide being committed. So, it is obviously a much lower threshold for that first stage,” he said.
Provisional measures and their implication
Becker, a former ICJ staffer, said that while the ICJ order did not go as far as South Africa wanted, it sticks very closely to its own precedent in terms of “types of provisional measures and orders (are issued) in these cases, especially those orders that essentially direct states to make sure they’re living up to their existing obligations.”
The first of the ICJ’s provisional measures is for Israel to, in accordance with its obligations under the 1948 Genocide Convention, take all measures to prevent genocide in the Gaza Strip.
For that part, Becker pointed out that two very different interpretations have come forward.
On one hand, some say that this is simply directing Israel to comply with the obligations it has under the Genocide Convention, he said.
“Of course, because Israel has been saying all along that we are complying with the Genocide Convention, it’s outrageous to claim that we’re not, some might see this (order) as not having a huge impact,” he told Anadolu.
Others, though, have interpreted this in a completely different way, he continued.
“Although the court didn’t require a cease-fire, many people are reading this in combination with the other provisional measure that directs Israel to take measures to ensure the effective delivery of basic services and humanitarian aid,” he said.
According to this viewpoint, the only way to do that and the only way for Israel to comply would be a de-facto cease-fire.
Becker believes both of those readings reflect the two totally different narratives and that either of those narratives is not quite right.
“I would not describe this as a de-facto cease-fire. I do think that this order from the court requires Israel, and should be understood by Israel, as requiring Israel to show far greater restraint in its military operation going forward,” he said.
That does not mean that the military operation against Hamas and other groups has to completely stop, he explained, but rather that Israel should avoid the actions that it is taking in that military campaign, particularly those that could potentially be considered acts of genocide in the future, if genocidal intent is proven.
“Secondly, to ensure that effective humanitarian assistance can actually get into Gaza, that requires, at a minimum, far greater restraint,” he added.
According to Cadman, one of South Africa’s primary requests was a cease-fire, but that has not been ordered by the court.
“Some commentators have said the court could have done that because it did a similar thing with the Ukraine-Russia case. Some might say that the conflict in Ukraine is different to the conflict in Gaza, but they still could have done that. Whereas other commentators have said the measures that have been indicated by the court are still sufficient to make it, just not a full cease-fire,” he said.
Cadman himself believes that there is sufficient basis in the provisional measures to force Israel, if it is going to comply with the orders, to take appropriate measures not to target civilians.
“Now, that doesn’t mean that it can’t still go after terrorist members of Hamas or Islamic Jihad or those individuals identified as terrorists, but it still has to do everything that it does in accordance with international humanitarian law,” he explained.
Broader obligations on state parties
Both Cadman and Becker are of the view that the ruling extends to state parties and their obligations under the Genocide Convention.
“It is important to remember is that the proceedings and the Genocide Convention itself is not imposing obligations just on Israel and South Africa. It is imposing obligations on all state parties to the genocide convention, including the UK, US,” said Cadman.
According to him, this sends a very clear message that these countries have to act in accordance with the spirit of the convention.
“If you are supporting a state that has now been declared as potentially either failing to prevent or actually carrying out a genocide, and you are providing material support, then, of course, that raises the responsibility of other states as well,” he said.
According to Becker, the court explained that the duty to prevent has to do with the states and their capacity to influence effectively the situation.
That capacity is going to vary a great deal from one state to another, he said.
“The ICJ’s ruling is so important because that ruling serves to put all states on notice that there is at least a significant risk, a serious risk of something that might be genocide, taking place,” said Becker.
Regarding countries suspending their funding to UNRWA, the UN agency for Palestinian refugees, he said there might be lots of question marks about that issue.
“So, I think there are real questions here about whether those states are living up to the duty to prevent genocide, and that is a legal analysis that should be going on right now in the foreign ministries of those states, so that they can advise those states on whether they need to rethink any of their decisions,” he said.
Reporting and enforcement
One of ICJ’s provisional measures is that Israel needs to report back to the court after one month of implementation of the order.
Becker believes that there is “indication that Israel doesn’t plan to do that or that Israel no longer plans to participate in the case.”
“I certainly hope that Israel will continue to participate, but that report is probably going to reflect a narrative that the South African legal team finds difficult to recognize,” he said.
According to him, the difficulty here is the confidentiality of those reports, which means that “we will simply be guessing about what Israel might be saying.”
The most important thing to see in that report is whether there is a clear explanation from Israel about what it is doing regarding two of the court’s measures – taking action to crack down on public incitement to genocide and steps for increased humanitarian assistance in Gaza, said Becker.
“Then it will be for South Africa to call to the court’s attention whether South Africa views that account as not credible,” he said.
“South Africa could, based on that information, perhaps seek additional provisional measures or seek for a modification of the provisional measures order.”
Legal expert Cadman believes that is unlikely that Israel “will comply either in part or in full with the decision of the ICJ.”
However, he pointed out that this is “really the first time that Israel had engaged in a process such as this.”
Becker feels that one way to think about the provisional measures is that even though Israel has rejected it publicly, the court’s decision presents something of an opportunity at the same time.
“To me, this is an opportunity for the US and UK to say to the Israeli officials, look, we now have this order from the ICJ, we strongly support you, but this now gives you an opportunity to change course,” he said.
That could lead to something, particularly since there are some elements within the Israeli establishment who would also like to see the government change course, he added.
